A North Dakota judge has denied the state’s request to dismiss a lawsuit over rules the North Dakota Health Council improperly adopted in 2015 that boosted landfill radiation-level allowances.
State District Court Judge Thomas Schneider issued an order Monday stating that “genuine issues of material fact exist,” and denying the Health Council’s motion. The nongovernmental Dakota Resource Council and North Dakota Energy Industry Waste Coalition have sought to vacate the rules because they were adopted without proper public notice.
The approved rules, which went into effect Jan. 1, boosted radiation level allowances at state landfills from 5 picocuries per gram of material to 50 picocuries. State Attorney General Wayne Stenehjem agreed with the plaintiffs in March, stating the Health Council should have allowed three months’ public notice of the meeting, instead of 13 days. Stenehjem cited that timeline because North Dakota law requires public notice at the same time that the governing body is notified of a meeting, which was three months in this case.
The Health Council argued in its court filing that there were no genuine issues of material fact because the plaintiffs “were not prejudiced because the Health Council complied” with the attorney general’s remedy following his decision. Stenehjem directed the council to distribute the minutes of the meeting to interested parties, which the plaintiffs have regarded as a weak response for an open meeting law violation.
The plaintiffs, in their own filing, argued that several residents in McKenzie County were “prejudiced or harmed” because they were not given the opportunity to attend the meeting. The county is home to a landfill that could receive the higher-radiation waste from oil-field operations, the Forum Communications News Service reported in April.
Following July 18 oral arguments before Schneider, the Health Council said it would consider the new rules for re-ratification at its Aug. 9 meeting. The council chair will determine whether to allow public comment, but testimony is not normally taken at meetings, only at hearings.
State officials have argued that the new rules help deter illegal dumping of Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM), by allowing agencies to track the material from production to disposal.
